Batcheldor v. Felt — 3 How. Pr. 425

Majority

p. 425

COURT OF APPEALS,

MARCH TERM, 1849.

Sherman & Batcheldor vs. Jabez Felt and others.

Headnote

The Supreme Court, as now organize!, has the same jurisdiction as the late Supreme Court possessed, with the addition of the equity jurisdiction of the late Court of Chancery. (Const, art. VI., § 3, S, and Art. XIV-, § 5, Stat. 1847, p. 323, § 16.)

A motion to set aside a judgment or decree, either for irregularity or as a matter of favor, is a question of practice, and is not the subject of review in an appellate court. Such an order cannot be considered “ a final order made upon a summary application after judgment," as provided by § 11 of the code.

On the 19th March, 1847, an order was entered taking the bill as confessed. On an ex parte hearing before the chancellor a final decree was entered on the 25 th May, 1847. On the 28th September, 1847, the Supreme Court, at special term, set aside the order taking the bill as confessed (19th March, 1847,) and all subsequent proceedings for irregularity. In March, 1848, the general term refused to rehear this last order. A motion was then made to the special term to set aside the said order of 28th September, 1847, among other grounds for want of jurisdiction; which motion was denied. Hotice of a motion for a rehearing of this last order was then given for August general term, 1848, which motion was denied. From this last mentioned order, an appeal was taken to this court.

N. Hill, Jr. moved to dismiss the appeal on the ground that the order appealed from did not involve the merits, &c.

A. Tabee, in opposition, insisted, among other grounds, 1st, that the Supreme Court had no jurisdiction to set aside a final decree of the chancellor. 2d. That this should be considered under the code, a final order upon a summary application in an action for judgment. The following points were decided by the court:

I. The Supreme Court, as now organized, has the same jurisdiction which was possessed by that court as organized prior to the first Monday of July, 1847, with the addition of the equity jurisdiction of the late Court of Chancery; and has the same power over decrees made by the late Court of Chancery which was possessed by that court while in existence. Of course the Supreme Court can now set aside for irregularity a decree made prior to July, 1847. (Const. Art. VI. § 3, 5, and Art. XIV. § 5 ; Stat. 1847, p. 323, § 16.)

2. The right of appeal given by the 11th section of the code, from a final order made upon a summary application after judgment, extends

p. 426

only in cases where the application is "based upon or concedes the validity of the judgment; and not to cases where the application is to vacate or set aside the judgment. "When the motion is to set aside, either for irregularity or as matter of favor, no appeal to this court will lie, whatever may be the decision. It is a mere question of practice, and it has been long settled that there can be no review in an appellate court in such cases.

Appeal dismissed.